Breadcrumbs

EC-COI-95-7

May 10, 1995

FACTS:

You are a member of a municipal Housing Board of Commissioners("Housing Board"), appointed by the Governor. Your appointment wasnot subject to confirmation by the City Council. The Governor doesnot publicize gubernatorial appointee vacancies on local housingauthorities in a newspaper or other periodical of generalcirculation. As a Commissioner, you are paid an annual stipendwhich does not exceed $1,800.

You are contemplating seeking election to the City Council.If elected, you would receive an annual

Page 624

salary of approximately $7,500. You state that the City Councildoes vote to confirm the four Housing Authority Commissioners otherthan yourself.[1]

QUESTION:

Does G.L. c. 268A permit you to hold your compensated positionas a member of the Housing Authority Board of Commissioners if youare elected to the City Council?

ANSWER:

No, unless you forego the $1,800 stipend for serving on theHousing Board.

DISCUSSION:

As a member of the Housing Board, you are a special municipalemployee[2] for purposes of the conflict law. See G.L. c. 121B,s.7. If you are elected as a City Councillor, you will be aregular municipal employee in that position.

Section 20 of the conflict law prohibits a municipal employeefrom having a direct or indirect financial interest in a contractmade by the same municipality. The term "contract" in s.20includes any type or arrangement between two or more parties underwhich one undertakes certain obligations in consideration of thepromises made by the other. Thus, we have previously concludedthat the term "contract" includes employment arrangements, EC-COI-84-91; In Re Doherty (1982); Quinn v. State Ethics Commission, 401Mass. 210 (1987), and that s.20 prohibits multiple office holdingin the same city or town, unless an exemption applies. See EC-COI-90-2; Commission Advisory No. 7: Multiple Office Holding at theLocal Level.

Since our decision in EC-COI-82-46, we have recognized thatbecause an elected position is not contractual in nature, anelected official's compensation is not received pursuant to a"contract". Therefore, s.20 does not prohibit you from holdingyour Housing Board position and also receiving compensation as aCity Councillor. However, we must examine whether there is anexemption which permits a City Councillor to receive compensationas an appointed Housing Board member.

1. Section 20(b) exemption

As noted above, if you are elected as a City Councillor, youwill be a regular municipal employee. You will have a prohibitedfinancial interest in your compensated position as a Housing Boardmember, unless an exemption from s.20 applies. Section 20(b)contains the only exemption generally available to regularmunicipal employees. In order to qualify for that exemption, youmust be able to meet all of the following conditions:

1. The second job must be with a completely independentagency, department or board. As a City Councillor youmay not participate in or have official responsibilityfor any of the activities of the second agency, and thefirst agency must not regulate activities of the secondagency;

2. the position is publicly advertised;

3. you file a statement disclosing the second job with thecity or town clerk;

4. the second job will be performed outside of the normalworking hours of the first position;

5. the services performed in the second job are not part ofyour duties in the first job;

6. you are not compensated in the second position for morethan 500 hours per year;[3]

7. the head of the second agency, department or board,certifies that no employee of that agency is available todo this work as part of their regular duties; and

8. the city or town council, board of aldermen, or board ofselectmen give their approval of this exemption froms.20.

We note that you will not fulfill the second s.20(b)requirement, namely, that your position as a Housing Board memberwas "publicly advertised."[4]

Section 20(b) requires that the second contract be "made afterpublic notice or where applicable, through competitive bidding."The term "public notice" is not defined in the conflict law.However, we have previously interpreted this term to requireadvertisement of the position "in a newspaper of generalcirculation." EC-COI-87-24. The public notice requirement is notsatisfied where the selection process has been "based primarily onword-of-mouth." EC-COI-83-95; 85-7 (Governor's word-of-mouthrequest for candidates to sit on seven member board did not satisfy"public notice" requirement in s.7(b), the state counterpart tos.20(b)). Moreover, we have declined to waive the public noticerequirement "upon a theory that public advertising would beimpractical or not effective." EC-COI-87-24 ("It is not for the

Page 625

Commission to waive the public notice requirement or broaden itsscope by interpretation. Any such change in law or policy mustemanate from the General Court."). The vacancy on the HousingBoard which you filled was not publicly advertised. Thus, you willnot qualify for the s.20(b) exemption.

2. The Housing Authority Exemption

This section shall not prohibit an employee of a housingauthority in a municipality from holding any electiveoffice, other than the office of mayor, in suchmunicipality nor in any way prohibit such employee fromperforming the duties of or receiving the compensationprovided for such office; provided, however, that suchelected officer shall not, except as otherwise expresslyprovided, receive compensation for more than one officeor position held in a municipality, but shall have theright to choose which compensation he shall receive;provided further that no such elected official may voteor act on any matter which is within the purview of thehousing authority by which he is employed; and providedfurther that no such elected official shall be eligiblefor appointment to any such additional position while heis still serving in such elective office or for sixmonths thereafter.

Here, we are asked to consider whether the seventh paragraph,which makes reference to an "employee" of a housing authority, alsoapplies to a "member" of such authority. Based on the expresslanguage used and the discernible legislative history of thisparagraph, we conclude that it does not.

In determining the scope of the housing authority exemption,we look first to the language used. Massachusetts CommunityCollege Council MTA/NEA v. Labor Relations Comm'n, 402 Mass. 352,354 (1988). By its express terms, the exemption applies to an"employee" of a housing authority. We note that under Chapter121B, a housing authority "shall be managed, controlled andgoverned by five members." G.L. c. 121B, s.5. The office of memberis created "by a statute enacted by the Legislature in accordancewith the broad power entrusted to the General Court to name andsettle officers, Constitution, Part II, c. 1, s.1, art. 4, and theLegislature can determine qualifications for members of a housingauthority, provide for their appointment or election, define theirduties, fix their tenure, and designate the causes for and methodto be followed in their removal." Collins v. Selectmen ofBrookline, 325 Mass. 562, 91 N.E. 2d 747, 749 (1950). Under G.L.c. 121B, s.6, a member may be removed from office "because ofinefficiency, neglect of duty or misconduct in office." A housingauthority may employ an executive director and "such otherofficers, agents and employees as it deems necessary or proper,"and may delegate to "one or more of its members, agents oremployees such powers and duties as it deems necessary and properfor the carrying out of an action determined upon by it." G.L. c.121B, s.7. Each member of a housing authority, "and any person whoperforms professional services for such an authority on a part-time, intermittent or consultant basis ... shall be considered aspecial municipal employee" for purposes of the conflict law. Id.Read together, these sections draw a clear distinction betweenmembers of a housing authority on the one hand, and housingauthority employees on the other. That is, the terms are neithersynonymous nor are they readily interchangeable.

Moreover, our examination of the evolution of the housingauthority exemption further supports our conclusion that theexemption applies to employees but does not apply to members of ahousing authority. The housing authority exemption was inserted bySt. 1987, c. 374, s.2, approved October 5, 1987. That statute wasenacted less than four months after our decision and order in In rePaul T. Hickson, 1987 SEC 296 (decided June 25, 1987). There wefound that Hickson, an elected city councillor in the City ofWestfield, had violated s.20 by also serving as a compensatedmaintenance worker for the Westfield Housing Authority. We imposeda fine for that violation in part because we found the facts ofHickson to be nearly identical to those in In re Kenneth R. Strong,1984 SEC 195.

What is now the housing authority exemption was originallyproposed in House No. 4294 as an amendment to Chapter 39 of theGeneral Laws. House No. 4294 contained a broad exemption whichprovided that "any elected municipal employee may serve as a paidemployee of a local housing authority." The General Court rejectedthat language, and in House No. 5896, amended s.20 by insertinglanguage taken verbatim from similar provisions in s.20 regardingthe application of the s.20 restriction to town councillors andboards of selectmen. The exemption contained in House No. 5896applied to "an employee of a housing authority." Based on ourreview of its evolution, we conclude that the intent of the housingauthority exemption was twofold. First, the exemption was craftedto address concerns raised by the Hickson and Strong decisionswhich applied to housing

Page 626

authority employees. Second, the exemption was intended toincorporate the restrictions applicable to members of boards ofselectmen and town councillors relative to holding additionalpositions in a municipality. However, we discern no legislativeintent to extend the scope of the exemption to include housingauthority members.

Accordingly, we conclude that because you do not qualify forthe s.20(b) or the housing authority exemption, s.20 of theconflict law will prohibit you from being a City Councillor andalso receiving compensation as a member of the Housing Board.However, you may serve in both positions if, within 30 days of yourreceipt of this opinion, you notify the Housing Authority that youwill forego the $1,800 stipend received for serving on the HousingBoard.

-------------------------

[1] In a city, four members of a housing authority shall beappointed by the mayor subject to confirmation by the city council.G.L. c. 121B, s.5.

[2] "Special municipal employee", a municipal employee who isnot a mayor, a member of the board of aldermen, a member of thecity council, or a selectman in a town with a population in excessof ten thousand persons and whose position has been expresslyclassified by the city council, or board of aldermen if there is nocity council, or board of selectmen, as that of a special employeeunder the terms and provisions of this chapter; provided, however,that a selectman in a town with a population of ten thousand orfewer persons shall be a special municipal employee without beingexpressly so classified. All employees who hold equivalentoffices, positions, employment or membership in the same municipalagency shall have the same classification; provided, however, nomunicipal employee shall be classified as a "special municipalemployee" unless he occupies a position for which no compensationis provided or which, by its classification in the municipal agencyinvolved or by the terms of the contract or conditions ofemployment, permits personal or private employment during normalworking hours, or unless he in fact does not earn compensation asa municipal employee for an aggregate of more than eight hundredhours during the preceding three hundred and sixty-five days. Forthis purpose compensation by the day shall be considered asequivalent to compensation for seven hours per day. A specialmunicipal employee shall be in such status on days for which he isnot compensated as well as on days on which he earns compensation.All employees of any city or town wherein no such classificationhas been made shall be deemed to be "municipal employees" and shallbe subject to all the provisions of this chapter with respectthereto without exception. G.L. c. 268A, s.1(n).

[3] Approximately 9.5 hours per week.

[4] Because it is not necessary to our decision, we expresslydecline to address whether the City Council's confirmation of fourof the Housing Board's members constitutes the City Council's"participat[ion] in or ... official responsibility for ... theactivities of the" Housing Board.